Introduction

One of Justice Antonin Scalia’s greatest legacies is his promotion of constitutional originalism. He employed the interpretive philosophy on the bench and argued for it in print1 and in speeches around the country. (Indeed, one of Scalia’s speeches about originalism at The University of Chicago in 20032 was formative in provoking my own thinking on the subject.)

One important feature of Scalia’s particular arguments for originalism was constraint—the idea that originalism was centrally a way, the best way, to constrain judicial decision-making, whereas nonoriginalist theories would essentially license judges to make up constitutional law as they went along. This motif appeared in various passages of his writing. For instance, he described as one of the chief virtues of originalism that it was “more compatible with the nature and purpose of a Constitution in a democratic system,” because:

The purpose of constitutional guarantees—and in particular those constitutional guarantees of individual rights that are at the center of this controversy—is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable. Or, more precisely, to require the society to devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside.3

On the other hand, he argued, “the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned.”4 He elaborated:

If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be.5

The central theme here is that originalism constrains judges from simply following popular pressures and, conversely, that nonoriginalists will not be able to produce a consistent and predictable system. Originalism may not be perfect on this score, but it is, Scalia said, the lesser evil.

In later work with Professor Bryan Garner, Scalia more explicitly emphasized the constraint of his methods of interpretation. “[S]ound interpretive conventions,” they wrote, “will narrow the range of acceptable judicial decision-making and acceptable argumentation” and “will curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.”6

But time comes for both men and theoretical arguments. In this short Essay, I honor Justice Scalia with two observations about originalism and constraint. The first is that originalist scholars today are much more equivocal about the importance and nature of constraining judges. This is a point that may be obvious to those steeped in the latest originalist theory, but appar­ently cannot be stated often enough or clearly enough to those who are not.

The second observation, which relates to the first, is that the concept of constraint is ambiguous in several respects and that originalism may be better at some kinds of constraint than others. In particular, I emphasize the difference between external constraints, which help others to judge the interpreter, and internal constraints, which focus on allowing the interpreter to constrain himself or herself. As reflected and refined in modern scholarship, originalism may not be terribly good at the former, but it may be much better at the latter. In other words, originalism can still have constraining power, but mostly for those who seek to be bound.

  • 1. See generally, for example, Antonin Scalia, Originalism: The Lesser Evil, 57 U Cin L Rev 849 (1989); Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton 1997) (Amy Gutmann, ed).
  • 2. See Andrew Moesel, Justice Scalia Speaks at Law School (Chicago Maroon, May 9, 2003), archived at http://perma.cc/WQ3K-SZYP.
  • 3. Scalia, 57 U Cin L Rev at 862 (cited in note 1) (emphasis omitted).
  • 4. Id at 862–63.
  • 5. Id at 855.
  • 6. Scalia and Garner, Reading Law at xxviii (cited in note 1).

Tags